The Exhibits
The exhibits mentioned here were filed in the Ross case on April 27, 2015. Exhibit 8 is an automatic level term reinsurance agreement between The Equitable Life Assurance Society of the United States (Equitable), which later became AXA Equitable Life, and AXA Financial (Bermuda) Ltd., a wholly owned reinsurance subsidiary of Equitable. The agreement was signed by the parties on December 22 and 29, 2003.
Exhibit 9 is an automatic lapse protection rider reinsurance agreement between the same parties. The agreement was signed by the parties on December 22 and 29, 2003.
Exhibit 10 consists of two standby letters of credit. The first, for $60 million, was issued by National Australia Bank (New York, NY) to AXA Financial (Bermuda) Ltd., was dated December 22, 2003, and expired December 21, 2004. Equitable was the beneficiary. The second, for $40 million, was issued by ABN Amro Bank N.V. (Chicago, IL) to AXA Financial (Bermuda) Ltd., was dated December 30, 2003, and expired December 21, 2004. Equitable was the beneficiary.
Exhibit 11 consists of a letter dated November 7, 2003 to the New York Department of Insurance (Department) from Equitable, and two proposed inter-company service agreements between Equitable and Athena Reinsurance, Ltd. (Bermuda). At the time Athena was being formed as a wholly owned reinsurance subsidiary of AXA Financial, Inc.
Exhibit 14 is a letter dated December 19, 2003 to Equitable from the Department. The Department expressed "no objection" to the agreements submitted with Equitable's November 7, 2003 letter.
The Freedom of Information Law
I have experience with New York State's Freedom of Information Law (FOIL). Equitable's November 7, 2003 letter to the Department referred to the FOIL exemption for trade secrets. The company requested confidential treatment for the letter and the agreements, and said the information was "provided with the express understanding that the confidentiality of such information will be safeguarded pursuant to all applicable provisions of the law . . . ."
Here is my understanding of what the above request means. If the Department had received a FOIL request for the material, the Department would have notified the company and asked the company to justify confidential treatment, with the burden of proof on the company.
If the company had submitted justification, and if the Department had agreed with the company, the Department would have denied the FOIL request. The requester could then have submitted to the Department an administrative appeal of the denial. If the Department had denied the appeal, the requester could have sought court review of the denial. If the Department had granted the appeal, the company could have sought a court order preventing the Department from releasing the material.
On the other hand, if the Department had disagreed with the company's justification, the company could have submitted to the Department an administrative appeal of the determination. If the Department had denied the appeal, the company could have sought court review of the determination. If the Department had granted the appeal, the requester could have sought court review of the determination.
The above is an oversimplified and incomplete description of the procedures associated with a FOIL request. Suffice it to say that going through the exercise can consume months or years. I was involved in such an exercise a few years ago when I sought documents filed with the Department by Phoenix Companies, Inc. relating to its cost-of-insurance increases on universal life policies used in stranger-originated life insurance transactions. The struggle went on for more than a year and was never fully resolved. However, I was able to announce in No. 26 (posted January 29, 2014) a judge's unsealing of several documents that had been filed initially under seal in lawsuits against Phoenix.
Here is my understanding of what the above request means. If the Department had received a FOIL request for the material, the Department would have notified the company and asked the company to justify confidential treatment, with the burden of proof on the company.
If the company had submitted justification, and if the Department had agreed with the company, the Department would have denied the FOIL request. The requester could then have submitted to the Department an administrative appeal of the denial. If the Department had denied the appeal, the requester could have sought court review of the denial. If the Department had granted the appeal, the company could have sought a court order preventing the Department from releasing the material.
On the other hand, if the Department had disagreed with the company's justification, the company could have submitted to the Department an administrative appeal of the determination. If the Department had denied the appeal, the company could have sought court review of the determination. If the Department had granted the appeal, the requester could have sought court review of the determination.
The above is an oversimplified and incomplete description of the procedures associated with a FOIL request. Suffice it to say that going through the exercise can consume months or years. I was involved in such an exercise a few years ago when I sought documents filed with the Department by Phoenix Companies, Inc. relating to its cost-of-insurance increases on universal life policies used in stranger-originated life insurance transactions. The struggle went on for more than a year and was never fully resolved. However, I was able to announce in No. 26 (posted January 29, 2014) a judge's unsealing of several documents that had been filed initially under seal in lawsuits against Phoenix.
Available Material
I am offering a complimentary 88-page PDF consisting of the 19-page Exhibit 8, the 20-page Exhibit 9, the seven-page Exhibit 10, the 40-page Exhibit 11, and the two-page Exhibit 14. E-mail jmbelth@gmail.com and ask for the five exhibits in the case of Ross v. AXA Equitable Life.